Racist Ideas, Quirky Question # 16

Quirky Question # 16:

I am both disappointed and embarrassed to report that one of our employees is an outspoken White Supremacist.  His views are abhorrent to me personally, as well as to nearly all of our company’s employees, both minority and non-minority.  The organization to which our employee belongs advocates violent conduct toward minorities.  Given that fact, should we take any action?  Can we fire this idiot?  (That’s my preference but I admit he has never engaged in any violent conduct in the workplace.)  If he ever engaged in any violent conduct in the workplace, as espoused by the organization to which he belongs, could the company be held liable?

Dorsey’s Analysis:

Your company has several options when addressing this extremely difficult situation.  At one end of the spectrum is the “Do Nothing” option.  At the other end of the spectrum is the “Fire the Dimwit” option.

I would strongly recommend against the “Do Nothing” approach.  Although the risks of physical violence to members of your workforce may be extremely low, the potential consequences of violent behavior by this individual are extremely serious, especially since the company is on notice of his racist beliefs.  On the other hand, I certainly understand that your company may be reluctant to discharge an employee solely because of the organization to which he belongs, no matter how unpalatable the belief system advanced by the organization.

At a minimum, however, the situation should be monitored very carefully.  If the employee articulates his hateful beliefs in the workplace, discharge him.  If he brings literature into the workplace advocating violence toward minorities, discharge him.  If his conduct toward minorities is antagonistic or belligerent, discharge him.  In all of these contexts, the company’s discharge position will be easily defended, inasmuch as the employee undoubtedly would be violating your company’s proscriptions against discriminatory conduct and would be creating a hostile and offensive working environment for your employees.

The tougher call is whether you should fire the employee in the absence of any violent conduct (and you stated that he has not exhibited any to date) and in the absence of specific conduct at the worksite that would warrant a discharge (as described above).  [I wonder, however, how you know the employee is a member of the White Supremacist organization?  Did he share his beliefs with his co-workers?  Did he attempt to interest others in the organization?  Did he exhibit behaviors in the workplace that led others to question him?  If those questions are answered affirmatively, go back to the preceding paragraph for the solution.]

Another factor that may play into your analysis relates to the position your employee holds.  Is he a manager?  Does he supervise any other employees?  Does he have the power to hire and/or fire?  If those questions are answered affirmatively, you have a problem that needs to be addressed.  At a minimum, your employee would have to be removed from any managerial or supervisory role.

Even if he is not a manager and has no supervisory or hiring/firing authority, does he have to work with other employees?  To the extent that the employee must interact regularly with others, if his perspectives and attitudes are well known to his co-workers, allowing him to continue working may be very disruptive.  It would be difficult to establish a collegial, professional and productive working environment for a diverse workforce when one member of the group holds views deeply offensive to others.  Given that fact, it may be appropriate to terminate the employee even in the absence of specific threatening conduct or workplace proselytizing.

Another reason to consider discharge is that if the company allows the employee to continue working and a tragedy ensues, the company may be at risk.  This is the situation in which Lockheed Martin found itself several years ago.  In the case of Tanks v. Lockheed Martin, a former Lockheed Martin employee who belonged to a racist organization that advocated violence toward minorities came to work and murdered and wounded several African American and Caucasian co-workers before killing himself.  According to the Complaint, there had been numerous incidents over many years that put the company on notice of the employee’s violent proclivities and his racist beliefs, including specific threats of violence toward minority co-workers.  The question presented was whether the company could be held liable for this tragic event under various common law theories.  The federal District Court rejected the Lockheed Martin’s summary judgment motion, seeking dismissal of the case based on the exclusivity provisions of the Mississippi Workers’ Compensation Act.  Although the District Court rejected the company’s arguments, it did certify an interlocutory appeal to the Fifth Circuit Court of Appeals.  Somewhat surprisingly, the appellate court reversed, finding that the actions of the murderer fell within the exclusivity provisions of the Workers’ Compensation statute.  See, Tanks v. Lockheed Martin Corp., 417 F.3d 456 (5th Cir. 2005).  The resolution of the Tanks case (and other related cases) from that point forward is unclear.

Putting aside the question of whether the applicable workers’ compensation statute may provide the exclusive remedy for violent workplace conduct, the cases involving violence by one employee toward another often turn on the issue of whether the company knew or should have known of the violent propensities of the employee who caused the injuries to a co-worker, or at times, a member of the public.  These types of cases implicate issues of negligent hiring, supervision and retention.  These issues, however, will be addressed in future Quirky Question analyses.

Supplement to Analysis of QQ # 16

In the last line of the penultimate paragraph in the analysis of Quirky Question # 16 above, I commented that the developments in the Tanks vs. Lockheed Martin Corp. litigation, as well as the related lawsuits, following the Fifth Circuit’s 2005 decision (reported at 417 F.3d 456) were “unclear.”  Not any more.

In a brief, unpublished, per curiam, decision, announced just last week, the Fifth Circuit affirmed the summary judgment dismissal of the claims of all of the other plaintiffs injured by the “deranged employee who went on a violent rampage at work.”  The appellate court found that the Tanks case was “factually and legally indistinguishable from the case here.”  Therefore, the court held that the claims of all of the other plaintiffs were “exclusively compensable by state workers’ compensation laws.”  See, Bailey, et al. vs. Lockheed Martin Corp., et al., No. 07-60399  (5th Cir. January 17, 2008).  Barring further appeal, this ruling seemingly has brought the litigation to an end.

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